Time for a change? Updating the law of wills

It is estimated that around 40% of the adult population die without a will. This is a high figure considering the increased awareness and accessibility of will-making services and providers. This ultimately means that many individuals will have their assets distributed in a way that they may not have wanted. This has prompted the Law Commission to review the laws surrounding wills to ensure they are fit for modern purpose.

Key issues considered by the Law Commission

Capacity to make a will

Many suggest that the current test for testamentary capacity, which dates back to the 19th Century, fails to consider the modern advancements and understanding surrounding mental health issues. Suggestions have therefore been made that the testamentary capacity test should instead be governed by the Mental Capacity Act 2005. The Law Commission has proposed the creation of a code of best practice which would provide guidance on when how capacity should be assessed. This would help provide greater clarity around capacity and help ensure that those who do in fact have capacity to make a will are not prevented from doing so.

Wills for children

The current age of testamentary capacity is aged 18 and many have suggested that this age limit should be lowered. Many consider that it may be appropriate for some children to have the ability to make decisions about their own financial assets. The Law Commission’s consultation paper has therefore suggested that the age should be lowered to 16. Concerns have arisen however that there will need to be very stringent measures in place to assess whether the specific child has the understanding and ability to make such important decisions.

Electronic wills

The topic of electronic wills is one which has grown over the last few years and continues to cause widespread debate. Many suggest that in today’s modern world, in which many individuals deal with their financial and personal affairs online, the ability to make an electronic will would be more convenient, more secure and more cost-effective. The drawbacks are the possibility of fraud and exploitation. Many practitioners raise concerns about the private data being hacked and are concerned about its security in light of recent hacking scandals. The Law Commission has highlighted that a key issue appears to be how an electronic will would be signed. Would an individual need to have an electronic signature or would a tick-box be sufficient? Guidance and clarification will therefore need to be issued to deal with this issue.

The issues discussed above are only some of the topics raised by the Law Commission’s consultation paper and it will be interesting to see if any of the reforms will be implemented, and the impact this will have on the number of people who have a valid will in place.